Stepping into a Kenyan courtroom is like stepping back into time, and not because of the powdered wigs gracing the judges’ heads.
Some cases date back 30 years or more, with some original litigants already dead and buried before they get their day in court. A murder case lingering in court 10 years is common, with poorer suspects languishing in jail and richer suspects released on bail, secured by their high priced lawyers, or by a well-placed bribe to a corrupt judge. Nationwide, there is a staggering 1 million case backlog, two-thirds of which are easily resolved traffic violations.
Kenyans have a chance to ensure that those bad old days are gone, says Kenya’s new Chief Justice, William Mutunga, in an exclusive interview with the Monitor. A new constitution, passed last year, is just the first step. But true reform can still be snatched away, he says, if Kenyans don’t remain vigilant in holding their leaders and their judges to the rule of law, even when it goes against their personal interests.
“A lot depends on what we do this year and next year,” he says. “We are looking at the next elections as the benchmark for our success.” If political leaders lose elections, but still trust the new judicial process enough to bring their complaints to court, “then we can say the new judicial framework has been successful.”
But Kenyans must be patient, he adds. “I understand the astronomical expectations. Kenyans believe that once you have the right person in a position, good things can happen. You have to manage their expectations, and tell them there are things you can’t do quickly.”
Dramatic as it sounds, fixing Kenya’s judicial system is a matter of life and death. In late 2007, when presidential candidate (and now Prime Minister) Raila Odinga refused to take his dispute over the final official vote count in favor of incumbent President Mwai Kibaki – arguing that judges appointed by President Kibaki would rule for Kibaki – Kenya’s political stalemate became a powderkeg. Supporters for both parties unleashed a wave of violence that killed an estimated 1100 deaths and more than 300,000 Kenyans displaced from their homes. Putting in place a judiciary that makes decisions based on the law, rather than personal loyalty, is an important step in making sure there are other ways to resolve disputes than through violence.
“I think our greatest concern is that people who have strategic positions can affect negatively the reform process,” says Hassan Omar Hassan, head of the Kenyan National Human Rights Commission. “Those people are in danger of losing their grip on power, and they will institute ways to roll back the reform of the judiciary. The good news is that Kenya has a strong civil society, with strong public participation. But if we lose vigilance, we might lose the spirit of reform.”
Kenyans once joked that if there was an Olympic sport for creating power from dysfunctional courts, their politicians would dominate the sport as much as Kenya’s runners currently dominate marathons. By ensuring that the judicial system is broken, those in power are able to deprive justice to others while winning important judicial decisions that suit their own interests. But there are signs of progress on that score. In Transparency International’s 2011 rankings of countries on the basis of good governance and honest business environments, Kenya ranked 106th out of 180 countries, up from 147th in 2007. http://www.heritage.org/index/country/Kenya
Among the factors leading to Kenya’s cleaner perception is the new constitution, endorsed by 67% majority of the public in the Aug. 4, 2010 referendum, despite heavy lobbying against it by both politicians and conservative church leaders. The new constitution redistributes power away from the executive toward the other branches of government, and enshrines the notion that all public officials are subject to the law.
Chief Justice Mutunga expects Kenyans and Kenyan politicians to put their new constitution to the test, as soon as it becomes clear that their interests are threatened.
“We’re going to have constitutional challenges early on,” Mutunga says, “and the political jurisdiction of the courts are going to be critical in that process. It’s those political cases that will come to us that will provide the biggest test to the system.”
“In the past, because of political corruption, anything that the judiciary used to do was predictable, they were always executive-minded,” says Mutunga. “So now, the judiciary is under scrutiny. Every single case will be watched, just like people are watching the ICC cases on TV now. If an important case is not decided quickly, people will say it’s business as usual.”
To ensure swifter justice, Mutunga has proposed and been provided with funds to hire more assistants for judges, so that judges can research legal precedents and make decisions more quickly. He has also requested and received funding for judges and prosecutors to receive training, so that they navigate the provisions of the new constitution.
Justice Minister Mutula Kilonzo says that these reform measures enjoy wide political support in parliament. “A lot of the bills that make these reforms possible have already been passed,” Mr. Kilonzo told the Monitor. “I’m not aware of any political party that would belittle the reform of the judiciary.”
Some Kenyan observers say judicial reform can be quickly undercut, as soon as Kenyan politicians realize that a functioning independent judiciary could deprive them of their accustomed power and ability to use their position to increase their personal wealth.
“Right now, there are Kenyan politicians who are trying to hasten the judicial reform process to convince the Institutional Criminal Court to return the post-election violence cases back home to Kenya,” says Steven Wafula, a political and economic analyst with West FM in Nairobi. “The rich are controlling the reform process for their own interests. But once their own interests are in jeopardy by the new judiciary, what will happen?”
Ultimately, the keys to Kenya’s future rest in the hands of the Kenyan people, Mutunga argues.
“Kenyans have a responsibility too,” he says. “They can bring their cases to court, which is a combative environment for solving disputes, or they can listen to their neighbors or seek arbitration.”
“But the Kenyan people have a tendency to put their leaders on a pedestal,” he adds with a chuckle, “and if you don’t do something, they’ll come for you with ropes.”